United States District Court, D. Arizona
J. MARKVICH. UNITED STATES MAGISTRATE JUDGE.
Lynn Ann Heuton (“Heuton”) brought this action
pursuant to 42 U.S.C. § 405(g) seeking judicial review
of a final decision by the Commissioner of Social Security
(“Commissioner”). Heuton raises five issues on
appeal: 1) whether the Administrative Law Judge
(“ALJ”) failed to properly consider evidence
submitted post-hearing; 2) whether the ALJ gave improper
weight to the treating physician’s opinion; 3) whether
the ALJ improperly rejected the vocational evaluation report;
4) whether the ALJ failed to consider how Plaintiff’s
impairments would affect her occupational base of unskilled,
medium work; and 5) whether the ALJ improperly discounted
Plaintiff’s credibility.(Doc. 14 at 12; Doc. 22 at 2).
the Court are Heuton’s Opening Brief, Defendant’s
Response, and Heuton’s Reply. (Docs. 14, 21, & 22).
The United States Magistrate Judge has received the written
consent of both parties and presides over this case pursuant
to 28 U.S.C. § 636(c) and Rule 73, Federal Rules of
Civil Procedure. The Court finds that the ALJ erred in
weighing Dr. Gray’s treating physician opinion and Mr.
Shapiro’s vocational evaluation opinion and in
negatively assessing Heuton’s credibility. These errors
impacted the ALJ’s RFC assessment and the hypotheticals
posed to the VE. Consequently, these errors were not harmless
because they ultimately impacted the Step Five nondisability
finding, and the Court finds remand for further proceedings
filed an application for Disability Insurance Benefits
(“DIB”) on August 29, 2011. (Administrative
Record (“AR”) 160). Heuton alleged disability
beginning May 14, 2011 (AR 160) based on back pain,
headaches, anxiety, fatigue, depression, and GERD. (AR 64).
Heuton’s application was denied upon initial review (AR
75, 99) and on reconsideration (AR 94, 104). A hearing was
held on August 26, 2013 (AR 27), after which ALJ Lauren R.
Mathon found, at Step Four, that Heuton was not disabled
because she was able to perform her PRW as a resident aide
(AR 19). Because Heuton argued that this work did not meet
the criteria for substantial gainful activity, the ALJ also
made an alternative finding at Step Five that Heuton was not
disabled because she could perform other jobs existing in
significant numbers in the national economy. (AR 20). On
March 6, 2015 the Appeals Council denied Heuton’s
request to review the ALJ’s decision. (AR 1).
date last insured (“DLI”) for DIB purposes is
March 31, 2015. (AR 11). Thus, in order to be eligible for
benefits, Heuton must prove that she was disabled during the
time period of her alleged onset date of May 14, 2011 and her
DLI of March 31, 2015.
was born on June 9, 1952, making her 58 at the alleged onset
date of her disability. (AR 64). Heuton has a high school
education. (AR 179). She has worked a number of different
jobs including phone enrollment for HMOs, magazine stocker,
housekeeper, janitor, and resident aide. (AR 321).
medical records include a number of progress notes from
Heuton’s care at the Southern Arizona VA beginning in
2004. Pertinent notes regarding Heuton’s mental health
care at the VA include the following:
6, 2004: Heuton was seen for an intake appointment and
reported she was having trouble with being in a funk, just
eating and sleeping and feeling stuck, and had not changed
clothes in 3 days. (AR 607). She reported no anxiety or
agitation but that she was quite sad and lacked motivation to
get involved in the community. Nurse practitioner Lorna Cook
assessed depression and prescribed Zoloft and referred Heuton
for counseling. (AR 608; 456-57 [counseling consult
request]). Heuton’s depression screening was positive.
2004: Cook observed that Heuton was “tearful though she
laughs and cusses about most things she says, ” and
assessed depression and grief. (AR 605). Cook prescribed
Lexapro and sleeping pills.
2004: Heuton was referred for counseling with Wilma Johnson
for depression, and stated she had no motivation or energy.
(AR 603). Johnson assessed depressive disorder with prolonged
bereavement. (AR 604).
6, 2004: Heuton stated she wanted to return to counseling
with the social worker. (AR 600; 455 [counseling consult
request]). She was observed to be alert and oriented, and her
mood disorder was improving. (AR 600-01).
18, 2004: Cook noted Heuton had severe depression, was
isolated, and did not pursue the widow’s group. (AR
598). She assessed depression exacerbation and prescribed
Sertraline “to help stimulate and reduce withdrawn
state” and indicated she would set up fee-based
counseling. (AR 599; 454 [counseling consult request]).
18, 2004: Heuton reported she was increasingly tearful as it
got closer to the anniversary of her husband’s death.
(AR 596). She reported buying a new horse and making friends
at the corral and making plans with them, which Cook noted
was “a significantly higher level of social involvement
than in the past.” Id. Cook also noted Heuton
had not been able to start counseling because she was not
eligible for fee-based services. Id.; see
also AR 451 [consult request inquiring whether there was
a counselling space available for Heuton]. Cook assessed
depression and increased Sertraline. (AR 597).
16, 2005: Cook noted Sertraline was not helping
Heuton’s mood and that she was having a lot of trouble
sleeping and lacked motivation. (AR 590). Cook observed
Heuton to be tearful and articulate, and recommended Heuton
see a counselor for her depression. (AR 591; 449 [counselor
consult request]). Cook also prescribed an antidepressant and
sleep medications. Heuton tested positive on a depression
screening. (AR 592).
28, 2005: At an individual therapy appointment, Heuton
reported to social worker George Lawson that she had been
depressed since her husband died in 1999 but had no symptoms
of depression prior to that, and had been in her house
depressed for the past 3 weeks. (AR 589). Lawson observed
Heuton to be tearful and assessed major depressive disorder,
recurrent, and recommended her PCP consider an
25, 2005: Heuton reported she was doing a little riding but
was sad and isolated for the most part. (AR 587). Lawson
noted her attitude and insight was slightly improved, and
assessed sustained grief reaction. Id.
2005: Lawson observed Heuton to be more positive and assessed
major depressive disorder, partial remission. (AR 586).
16, 2005: Cook noted Heuton was “brighter than any
previous visit, ” medication change helped with less
weeping, and counseling was helpful. (AR 584). Cook observed
Heuton to be laughing, direct, and hopeful, and assessed good
control of her depression. (AR 585).
16, 2005: Cook observed that Heuton was calm and laughing and
noted her depression was nicely controlled on medication and
that she was using sleeping pills twice per week. (AR 582).
16, 2005: Heuton reported her father died in September and
she was coping well; resting adequately. (AR 578). Cook noted
normal mood and affect. (AR 579).
28, 2006: Heuton reported being significantly more depressed
since she was not sleeping well, and tried doubling her
antidepressant without relief. (AR 574). Cook observed her to
be talkative with a low pitched voice and tearful, and
assessed “depression exacerbation with grief overlay
and poor sleep.” (AR 575). Cook recommended Heuton see
a counselor and consider a support group because
“isolation is real issue for her.” Id.
4, 2006: Heuton reported sleeping better but still struggling
with feeling of no motivation; overwhelming sadness. (AR
569). Cook observed her to be tearful and articulate, and
assessed depression and prescribed Wellbutrin. (AR 570).
15, 2006: Heuton reported feeling much better after taking
Wellbutrin for 1 month and was sleeping well with her
sleeping pills. (AR 564). Cook indicated Heuton was not
eligible for a counselor. Heuton was observed to be laughing,
bright, and talkative, and Cook assessed depression
“much improved” and “expect this
improvement to be sustained.” (AR 565).
28, 2007: Increased agitation and blowing up more often;
stopped Wellbutrin and crying on the couch again. (AR 560).
Cook noted Heuton was “talking fast and abruptly but no
physical restlessness, still usual laughter about her
situation.” (AR 561). Wellbutrin and Citalopram
prescribed for mood control.
28, 2007: Doing much better on Citalopram. (AR 558).
Counselling offered but Heuton felt it was not necessary. (AR
12, 2007: On depression screen, Heuton reported having little
interest or pleasure in doing things more than half the days,
and feeling down, depressed, or hopeless several days. (AR
14, 2007: Negative for PTSD screening. (AR 550).
24, 2007: Mood control good. (AR 546).
5, 2008: Mood control holding on Citalopram and Trazodone for
sleep. (AR 538).
22, 2008: Heuton called and requested letter documenting her
PTSD, needed for a job. (AR 537).
16, 2008: Does not do well off medications, tearful and
cannot get motivated. (AR 527). Positive depression screen.
(AR 528, 531).
2009: Major depressive disorder well controlled. (AR 495).
3, 2010: Major depressive disorder well controlled mood and
sleep. (AR 489).
9, 2010: Heuton called and stated she needed a letter written
stating that her horses are therapy for PTSD; requested
medication change because antidepressant was making her
sluggish and irritable. (AR 480).
27, 2010: Not managing depression well; had anger outburst
and lost her job; has lost motivation. (AR 476). Cook noted
Heuton was tearful and assessed depression exacerbation and
prescribed a mood stabilizer. (AR 477).
1, 2010: Cook noted Heuton was not eligible for care from VA
mental health department. (AR 474). Observed Heuton to be
talkative with no tearfulness; assessed depression and noted
Heuton had not tolerated Bupropion. (AR 475).
27, 2010: Heuton called and requested consult with
psychiatrist due to depression. (AR 472).
23, 2010: Exacerbation of depression, more tearfulness and
anger; did not improve with Bupropion and no significant
impact with additional Lamotrigine; Trazodone beneficial for
sleep. (AR 468).
from Concentra dated March 22, 2011 indicates that Heuton
injured her back, neck, and shoulders at work on March 18,
2011. (AR 643). Findings on exam included: cervical spine
reveals no swelling, deformity, abnormal curvature or other
abnormalities; normal cervical ROM; palpation of cervical
spine positive for tenderness; positive straight leg test
produces back pain; lumbar ROM decreased mildly with pain;
palpation positive for pain at L3, L4, and L5. (AR 644). The
examiner assessed lumbar strain and shoulder strain and
recommended therapy. Id.
saw Dr. Gray on April 18, 2011 for a follow-up on her neck
and low back pain. (AR 329). Dr. Gray noted she did not have
pain at the appointment, but had intermittent low back pain
at an 8/10. Findings on exam include neck supple, extremities
unremarkable, positive straight leg raise on the right, right
ankle jerk absent, pinprick diminished in both lower
extremities, and equivocal soft/light touch test. (AR 330).
Dr. Gray observed that Heuton could heel and toe walk without
difficulty but “was positional at times with regard to
pain and splinting.” Id. He assessed low back
pain and back strain and referred Heuton for x-rays and a MRI
of the lumbar spine. Id. Dr. Gray also recommended
that Heuton was to remain off work “as there is no
light duty for her and her job definitely entails significant
lifting of 40 or 50 pounds at a time.” Id.
had a MRI of the lumbar spine on May 5, 2011. (AR 350). The
conclusion was diffuse degenerative changes throughout the
lumbar spine, including mild to moderate compression
deformities at T11 and mild compression deformities at T 10,
T12, L1, and L2. There was also mild disc bulging at T11-T12,
L1-L2, L2-L3, L3-L4, and L5-S1, and moderate bulging at
T4-L5. There were mild hypertrophic degenerative facet joint
changes at T3-L4, and moderate to marked changes at T4-L5 and
12, 2011 Heuton had nerve testing which showed a normal EMG
of the lower extremities and normal nerve conduction
velocities of the bilateral lower extremities. (AR 347). The
impression was no evidence of radiculopathy or neuropathy,
and no electrodiagnostic abnormalities. Id.
saw Dr. Gray on May 27, 2011 and reported a headache at 8/10
related to pain in her neck. (AR 332). On exam, Dr. Gray
noted she could heel and toe walk without difficulty and got
on and off the table with some antalgia. Id. Dr.
Gray noted that Heuton’s “EMG and nerve
conduction velocities were normal in the lower extremities
and the MRI revealed generalized degenerative changes with
some bulging discs within the lumbar spine and compressive
changes in the T11-T12 vertebra but there was no evidence of
any herniation.” (AR 333). Dr. Gray referred Heuton for
physical therapy (“PT”) for her low back strain
and continuing pain. (AR 333, 657-58).
letter from Dr. Gray to Health Direct Inc. dated May 27, 2011
There definitely was a causal relationship between the
bending and lifting that [Heuton] did on the date in question
and the injury that she sustained. Her low back pain is
definitely related to her back injury and strain and there is
no evidence of any new injury.
My current treatment protocol and plan is to have her undergo
physical therapy 3 days a week for the next 4 weeks . . . We
will also provide her with pain meds.
saw Cook on June 21, 2011 for a follow-up on mood disorder
and back pain. (AR 462). Cook noted that Heuton had chronic
depression and prolonged bereavement, and recently had 3
panic attacks. (AR 463). Heuton reported going on
worker’s compensation in March after injuring her neck
and back and stated she started PT and her neck was better.
Id. Cook assessed chronic depression, moderate
response to medication, and noted counselling was not
available to Heuton through the VA. (AR 464). She also
assessed low back pain and recommended Heuton continue PT,
and prescribed medications for panic attacks and muscle
saw Dr. Gray on July 18, 2011 and reported her back pain was
significantly better but that she was concerned about neck
pain and was also experiencing headaches. (AR 334). Dr. Gray
noted she was under a lot of stress after being evacuated
from her home due to a fire. Id. Dr. Gray stated
that PT was exacerbating Heuton’s neck pain and advised
that she discontinue PT and “just let time, love, and
tenderness help to get things back into shape.” (AR
discharge summary dated July 22, 2011 indicates that Heuton
was being discharged for administrative reasons and did not
complete her therapy program. (AR 323). A handwritten note,
presumably from Dr. Gray, indicates that he advised Heuton to
stop PT because she had increased neck pain. Id. The
therapist noted that Heuton had sharp, dull, radiating back
pain at an 5/10, and that her pain was made worse by bending,
lifting, and sitting for more than 15 minutes. (AR 324). The
therapist also noted that Heuton reported numbness and
tingling in the right upper and lower extremity, that she
takes 2-4 Vicodin daily for headaches and knee pain, and that
she had limited trunk sidebending, pain with straight leg
raise, and tender bilateral lumbar and thoracic paraspinals.
saw Dr. Sullivan on August 17, 2011 and reported depressive
symptoms including loss of motivation, difficulty sleeping,
decreased memory and concentration, poor appetite, and
dysphoria beginning in the late 1990s. (AR 731). She also
reported panic attacks when stressed, treated with Paxil. Dr.
Sullivan assessed major depressive affective disorder
recurrent episode severe degree without psychotic behavior
and a GAF score of 60. He prescribed Effexor and Seroquel and
saw Dr. Gray on August 29, 2011 and reported continuing
significant low back pain and neck pain. (AR 337). Dr. Gray
noted that her back pain was variable and tended to be a
7.5/10. Id. On exam, Dr. Gray noted that straight
leg raises were positive to 40 degrees and talar subflexion
was also positive, and that Heuton was angulating without
evidence of antalgia. (AR 338). Dr. Gray stated that he was
waiting on records so that he could continue Heuton’s
work capacity evaluation and that he might send her to PT for
an objective assessment of her work capacity. Id.
saw Dr. Sullivan on September 5, 2011 and reported feeling
worse and no energy, but sleeping well and no panic attacks.
saw Dr. Gray on September 16, 2011 with concerns about
continuing neck pain, headaches, and low back pain. (AR 340).
Dr. Gray noted that this was all related to her workplace
injury and that Heuton was unable to tolerate PT because it
aggravated her headaches when they were working with her
neck. Id. On exam, Dr. Gray noted that straight leg